Congresswoman Zoe Lofgren drafts 'Aaron's Law' bill that would exclude terms of service from Computer Fraud and Abuse Act

A draft bill to exclude terms of service violations from the Computer Fraud and Abuse Act (CFAA) is to be introduced in the U.S. House of Representatives.

The proposed amendment to the anti-hacking law comes in the wake of the suicide on Friday by Internet activist and computer prodigy Aaron Swartz, who was charged with wire fraud, computer fraud and other crimes for allegedly accessing and downloading over 4 million articles from the JSTOR online database through the network of the Massachusetts Institute of Technology.

Swartz allegedly intended to distribute a significant proportion of JSTOR's archive through file-sharing sites. If convicted, he could have faced up to 35 years in prison and a fine of US$1 million.

The government was able to bring disproportionate charges against Swartz because of the broad scope of CFAA and the wire fraud statute, wrote Representative Zoe Lofgren in a post on Tuesday on the Reddit news-sharing site in which Swartz played a key role. "It looks like the government used the vague wording of those laws to claim that violating an online service's user agreement or terms of service is a violation of the CFAA and the wire fraud statute," she said.

The proposed amendment to the CFAA (Section 1030(e)(6) of title 18, United States Code) excludes access in violation of an agreement or contractual obligation, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized.

Lofgren plans a similar amendment to the statute on fraud by wire, radio, or television (Section 1343 of title 18, United States Code), which states that a violation of an agreement or contractual obligation regarding Internet or computer use, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer is not in itself a violation of this section.

A Democrat who represents California's 19th congressional district, Lofgren said she would seek cosponsors for the bill from both the Republican and Democratic parties. The bill to amend CFAA and wire fraud statutes, which she would like to call "Aaron's Law," should be enacted separately and swiftly, she said. "It could be an important tribute to him," Lofgren said.

The CFAA makes it illegal to gain access to protected computers without authorization or in a manner that exceeds authorized access, wrote Marcia Hofmann, senior staff attorney at the Electronic Frontier Foundation in a post earlier this week. "Unfortunately, the law doesn't clearly explain what a lack of 'authorization' actually means. Creative prosecutors have taken advantage of this confusion to craft criminal charges that aren't really about hacking a computer but instead target other behavior the prosecutors don't like," she wrote.

"Kudos to Rep. Lofgren for her swift response. But her bill wouldn't have prevented Aaron's prosecution under the CFAA or wire fraud law," Hofmann said in a Twitter message on Tuesday. The draft bill is a good start, but she hopes to see Aaron's Law strengthened before it reaches Congress, Hofmann said in another message.

A petition launched Monday on the White House's website has also called for reforming the anti-hacking law. The act is too open ended, and any reasonable use of a computer system that isn't explicitly authorized can be classified a computer crime, it said. The petition had 2,058 signatures by late Tuesday.